生态环境损害索赔权的法律性质与规范调适

The Legal Nature and Normative Adjustment of the Claim Right of Compensation for the Damage to Ecological Environment

生态环境损害索赔权的法律性质是生态环境损害赔偿制度规范构建的逻辑起点。目前,学界围绕该问题形成了民事权利说、行政权力说、区分混合说(索赔权性质因自然资源种类不同而有别)和一体混合说(各类自然资源损害索赔权同时具有民事权利和行政权力双重属性)四种学说。但既有学说局限于生态环境损害赔偿制度的内部视角,倾向于简单地移植域外理论,且侧重于功能分析,欠缺体系性的规范分析。生态环境损害索赔权是自然资源国家所有权的程序性权能,其法律性质应当是行政权。索赔权的法律性质与索赔权的实施机制不应混淆。即使索赔权是行政权力,其亦可经由私法性程序机制实现目的。生态环境损害赔偿制度的改革思路应当是回归公法,强化行政权在生态环境损害救济过程中的效力。

The legal nature of the claim right of compensation for the damage to ecological environment is the logical initial point for constructing the system of compensation for the damage to ecological environment. At present, the academic circles have formed four theories around this issue, namely, the theory of civil rights, the theory of administrative power, the theory of distinction and mixture(the nature of the claim right differs according to types of natural resources), and the theory of integration(for all natural resources, the claim right is both a civil right and an administrative power). However, the existing theories are limited to the internal perspective of the system of compensation for the damage to ecological environment and tend to simply transplant foreign theories. Moreover, the existing theories focus on functional analysis and lack systematic normative analysis. The claim right of compensation for the damage to ecological environment is the procedural power of the state ownership of natural resources, and its legal nature is administrative power. The legal nature of the claim right should not be confused with its implementation mechanism. Even if the claim right is administrative power, it can also be protected and realized through the procedural mechanism of civil law. The idea of reforming the system of compensation for the damage to ecological environment should be to return to public law and strengthen the effectiveness of administrative power in the process of ecological and environmental damage relief.